Part 1 The Cold War Era (1945–89), 20 The Larnaca Incident—1978
Edited By: Tom Ruys, Olivier Corten, Alexandra Hofer
- Protective measures — Protected persons and property — Ius ad bellum
On 18 February 1978, two Arab gunmen assassinated Mr Yussuf al-Sibai, a prominent personality in Egypt and a close associate of Egyptian President Anwar Sadat, at a conference at the Hilton Hotel in Nicosia, the capital of the Republic of Cyprus.1 The two gunmen were believed to be members of the Abu-Nidal group, a Palestinian organization that broke away from the PLO. Their act appeared to be motivated by opposition to the visit of President Anwar Sadat in Israel in November 1977, which would eventually pave the way for the Peace Treaty between Egypt and Israel in 1979.2
Immediately after the assassination, the gunmen took twelve hostages and led them to Larnaca airport, where they successfully demanded a Cyprus Airways aircraft to be made available to them. They took off only to return to Larnaca the following day, 19 February 1978, after the authorities in Syria, Yemen, and Djibouti refused to allow the plane to land in their territory. Upon their return, the Cypriot authorities began negotiations with the gunmen for the release of the hostages. Still on 19 February 1978, while the negotiations were in progress, Egypt sent a seventy-five-man commando force to Larnaca airport that attempted to free the hostages and arrest the gunmen. The Cypriot National Guard resisted the commando operation and heavy gunfire broke out between the Egyptian commandos and the Cypriot forces. The battle lasted an hour and resulted in the death of fifteen Egyptian commandos, many injured on both sides, and the destruction of the Egyptian military aircraft that had transported the commando force. The remainder of the Egyptian force surrendered and was sent back to Egypt the following day. The gunmen themselves surrendered to the Cypriot authorities and the hostages were freed. The Cypriot Government refused an extradition request from Egypt and the gunmen were prosecuted and tried for murder before the Cypriot courts. They were found guilty and sentenced to death; their penalty was later commuted to life imprisonment.
The clash between the Cypriot and Egyptian forces caused a diplomatic crisis that resulted in the severance of diplomatic relations between Cyprus and Egypt. Relations were restored after President Anwar Sadat’s assassination in 1981.
II. The Positions of the Main Protagonists and the Reaction of Third States and International Organizations
The Cypriot authorities consented to the landing of the Egyptian military aircraft at Larnaca airport on 19 February 1978 because they were led to believe that it carried Egyptian officials dispatched to participate in the negotiations for the release of the (p. 235) hostages. Shortly before the landing of the Egyptian military aircraft at Larnaca airport, the Prime Minister of Egypt informed the undersecretary to Mr Spyros Kyprianou, the President of Cyprus, that the Egyptian Minister of Information was flying to Cyprus to observe the negotiations.3 Moreover, in a telephone conversation at noon on 19 February 1978, President Kyprianou informed President Sadat of his personal involvement in the negotiations,4 to which Sadat expressed his appreciation.5
However, the true nature and purpose of the mission led the Government of Cyprus to believe the action of the Egyptian commandos was an intervention and a violation of the sovereignty of Cyprus.6 Indeed, President Kyprianou stated that:
Never did the Cyprus government give its consent for the Egyptian action at Larnaca airport. On the contrary, in all our contacts we made it abundantly clear to the Egyptian representative that we banned any action by the armed group which had arrived at Larnaca without our consent. Unfortunately the action was taken despite the promises made to the contrary, and the government forces had to intervene with the well-known results.7
The Government of Egypt claimed that Cyprus had failed to protect Mr al-Sibai and the hostages.8 Even though no explicit statement was made in justification of the operation, it appears that its objective was both the rescue of the hostages9 and the apprehension of the hijackers.10 In fact, it is inferred from reports of the incident that the Egyptian Government was concerned that the Cypriot authorities intended to allow the gunmen to leave the country.11 Initially, Egypt claimed that the Cypriot Government had been notified of the operation at Larnaca, but eventually President Sadat admitted that the consent of Cyprus had not been obtained.12 Nevertheless, the President denied that the commando operation constituted an act of aggression even though he did not offer a specific justification under international law.13
It is noteworthy that neither Cyprus nor Egypt made any communication to the UN Security Council. Few states reacted to the incident at Larnaca airport and their statements were not explicit with respect to the lawfulness of the Egyptian operation. Mr Constantine Karamanlis, the Prime Minister of Greece, considered the events at Larnaca unfortunate and stated that:
both governments were involved in an adventure that was the repercussion of events out of their control. No hostile intentions should be assigned to them. I hope and pray that after the justified excitements caused by the Larnaca events, more calm thought would prevail, leading to the resolution of misunderstandings.14
(p. 236) US President Jimmy Carter sent a letter to President Sadat in which he commended his ‘courageous decision’ to authorize the operation at Larnaca airport. In reaction, Cyprus formally protested to the US Government, and in the brief diplomatic correspondence that followed, the US Secretary of State assured the Cypriot President that: ‘[T]he message from President Carter to President Sadat was not intended to fix blame on either Egypt or Cyprus in connection with this tragic incident.’15 Furthermore, during a UK cabinet meeting on 22 February 1978, the British Foreign Secretary stated that as a result of the Larnaca incident some countries would be very reluctant to allow foreign anti-terrorist operations on their territory. He further remarked that the contingency plans made after the 1976 Entebbe incident (which involved an Israeli commando raiding a hijacked plane at the Ugandan airport of Entebbe)16 and whereby UK special forces could undertake anti-terrorist operations were based on local government consent.17 Finally, the Government of Cyprus took steps showing a genuine desire on its part to restore good relations with Egypt that were disturbed as a result of the battle at Larnaca airport. For instance, in early March 1978, Cyprus informed the United States that even though ‘the whole blame lies with the Egyptian side’ the Government of Cyprus would make every effort to restore relations with Egypt and requested the mediation of the US Government towards this end.18
By way of preliminary remark, it is clear beyond any doubt that the Egyptian commando operation was not undertaken on the basis of the prior consent of the Republic of Cyprus. Indeed, the latter country laid particular emphasis on the absence of its consent to a military operation conducted on its territory and insisted that it allowed the landing of the Egyptian military aircraft because it was led to believe that it carried an Egyptian government minister dispatched to oversee the negotiations with the hijackers. Finally, despite initial statements to the contrary, Egypt admitted that its commando force was sent and launched its operation without the prior permission of the Cypriot Government.
The Larnaca incident is generally treated in academic writings19 as an instance of forcible protection of nationals abroad despite the absence of any reference to this doctrine by Egypt in justification of the commando operation. The concept of ‘protection of nationals’ refers to the admissibility of the use of force by a state on the territory of another state (p. 237) for the protection of the former (intervening) state’s nationals whose lives are in mortal danger either: (i) because of the policies of the territorial state where the intervention is taking place; (ii) because of the breakdown of law and order in the territorial State; or (iii) because they are held hostage by armed individuals on the territory of that state.20
Prior to the UN Charter, the protection of nationals appears to have been admitted as an independent basis of permissible use of force, which moreover extended beyond the protection of lives to the property of nationals. In the pre-League of Nations period—prior to the emergence of the modern prohibition on the use of force—it was justified as a form of self-preservation.21 During the era of the League of Nations, the right of protection of nationals was asserted on several occasions by the United States, the United Kingdom, and Japan as an autonomous basis of the use of force (even though its compatibility with the 1919 League Covenant and the 1928 Pact of Paris appears uncertain).22
The introduction of the rule prohibiting the threat or use of armed force in Article 2(4) of the UN Charter has raised the question of whether protection of nationals remains lawful under the contemporary legal framework on the use of force by states. As the Charter does not introduce the protection of nationals as an express exception to the prohibition of the use of force, it is submitted that this question must be dealt with on the basis of state practice in the post-1945 period. It must be noted at the outset that the introduction of troops on the territory of a state on the basis of its consent does not raise any problems with respect to the lawfulness of a military operation for the protection of nationals.23 Moreover, it is generally accepted that the law in force does not admit the use of force for the protection of property (as opposed to the lives) of nationals.24 Proponents of the doctrine have sought to justify the use of force for the protection of nationals mainly on two bases, namely: that the use of force to protect nationals: (i) does not constitute a violation of Article 2(4) because it does not undermine ‘the territorial integrity or political independence’ of the target state; or (ii) that it qualifies as an exercise of the right of self-defence under Article 51 of the UN Charter. Each of these possible legal bases is briefly addressed below.
(a) Protection of nationals does not amount to a use of force ‘against the territorial integrity or political independence’ of a state
The first justification is premised on a restrictive interpretation of Article 2(4) according to which the use of armed force is prohibited only when it aims at the seizure or occupation of the target state’s territory. Therefore, any armed action that does not have this consequence—including, for instance, a protection of nationals operation aimed at saving References(p. 238) the lives of a state’s citizens abroad—is permissible and lawful by virtue of the terms of Article 2(4) itself. This reasoning has nonetheless been refuted by the International Court of Justice and state practice. In the Corfu Channel Case, the UK maintained that a Royal Navy minesweeping operation, Operation Retail, inside Albania’s territorial sea and without her consent, was lawful because it did not impair the territorial integrity of Albania or cause permanent territorial loss.25 The Court rejected the argument26 and affirmed this position in Nicaragua.27 In the view of the Court, the prohibition of the use of force protects the territorial inviolability of a state against trespasses by land, sea, or air, and protects the totality of the competence of a state as a subject of the law against forcible acts. In this respect, the Court upheld the state of customary law on the matter.28
Even though the argument based on a narrow reading of Article 2(4) of the UN Charter has been invoked on a number of occasions,29 the protection of nationals abroad is most often justified in state practice under the exception of the right of self-defence, which is examined next.
(b) Protection of nationals as an exercise of the right of self-defence
The second justification is by far the most compelling contention for the permissibility of the right to protect the lives of nationals abroad and it is supported by authority. Sir Humphrey Waldock has expressed the view that resort to force for the protection of nationals is an exercise of the right of self-defence on the basis of the Caroline incident formula, defining the doctrine in the following terms: ‘There must be: (1) an imminent threat of injury to nationals; (2) a failure or inability on the part of the territorial sovereign to protect them; (3) measures of protection strictly confined to the object of protecting them against injury.’30 This second argument advance to justify protection of nationals operations appears preferable to the first as it leaves unaffected the scope and supremacy of the Charter prohibition on the use of force. The lion’s share of states that have resorted to armed force under the auspices of the protection of nationals appears to suggest that such action can be taken under the right of self-defence.31
References(p. 239) The characterization of military action for the protection of nationals as an exercise of the right of self-defence presupposes that an attack on the nationals of the state beyond its borders is an attack against the state. However, despite the abovementioned state practice, this position has been challenged and refuted both in academic writings,32 opinions of international judges,33 and state practice.34 In the present author’s view, the argument is nearly impossible to maintain in light of the ICJ’s distinction between uses of force that amount to an ‘armed attack’ and other ‘less grave’ uses of force ‘short of an armed attack’ in the Nicaragua and Oil Platforms judgments.
In any case, even if one would hold—incorrectly, in the present author’s view—that protection of nationals operations can qualify as an exercise of the right of self-defence when they meet the three criteria introduced by Waldock (see above), an appraisal of the Egyptian commando operation reveals that the Egyptian action fails to meet these parameters and must accordingly be deemed unlawful.
On the basis of the facts there does not appear to have been an imminent threat to the lives of the hostages at Larnaca airport. There were no threats of killing the hostages or even the execution of any of them as a warning lest the hijackers’ demands were not met. On the contrary, the hijackers were intent to engage in negotiations to leave Cyprus rather than to force the Egyptian Government to meet their demands under the threat of killing the hostages.
References(p. 240) (b) Failure or inability of territorial state to protect the hostages?
The Government of Cyprus engaged in negotiations with the hijackers for the release of the hostages. The negotiations were meaningful and took place with the personal involvement of the President of Cyprus. There was no sign that Cyprus was lending political support to the hijackers, such as was, for example, reportedly the case of the Ugandan Government during the Entebbe crisis.35 Moreover, there was no tense stand-off between the Cypriot authorities and the hijackers as the airport continued to operate normally while the negotiations were in progress.36 In fact, as it was stated after the incident, the negotiations were nearing conclusion with the hijackers ready to surrender and disembark when the Egyptian commando force opened fire.37
The Egyptian commandos launched their operation by assaulting and firing at the aircraft in which the hostages were held. The engagement with the Cypriot National Guard started immediately and the battle that followed was intense. Although the aim of the operation was to rescue the hostages, the manner in which it was conducted and the reaction of the local forces suggest that the lives of the hostages were threatened rather than protected by the actions of the commandos.
The Larnaca incident took place one-and–a-half years after the Entebbe operation but, unlike the latter, it did not generate any debate as to the legality of operations to protect nationals abroad in hostage situations. Egypt seemed to be equally (if not more) concerned about the likelihood of allowing the hostage-takers to leave Cyprus than about rescuing the hostages. It did not invoke any legal argument in justification of dispatching the commando force. In fact, it made no communication to the UN Security Council in this respect. Cyprus treated the commando operation as a violation of its sovereignty mainly because it had not given its consent to conduct a military operation on its territory. The incident was not debated at the level of the Security Council or at any other UN or regional body. Few states commented on the Egyptian operation (let alone on its legality).
While a number of authors discuss the Larnaca incident under the rubric of protection of nationals,38 it is arguably regarded best as an instance of state practice that reveals the importance of consent by the territorial state as a prerequisite for the legality of such operations. The Larnaca incident indeed illustrates the dubious legality of protection of nationals in customary law without the territorial state’s consent and the danger such operations may pose to international peace.
First, the expression of consent by the government of the territorial state appears to be the only basis for a military operation for the protection of nationals. The Larnaca incident has value as a precedent in this respect. Thus, the Cypriot Government initially consented to the landing of the Egyptian aircraft in the belief that it carried Egyptian officials who were going to take part in the negotiations to free the hostages. When it became apparent that it carried a commando force charged with taking military action (p. 241) upon landing, Cyprus treated the operation as violation of its sovereignty and the Cypriot National Guard immediately engaged the commandos in combat. Egypt, for its part, initially attempted to present the commando mission as being based on the consent of the Cypriot Government and refrained from invoking the right of self-defence.
State practice at the time of the incident would not unequivocally admit the lawfulness of the use of military force for the protection of nationals without the territorial state’s consent as an exercise of self-defence.39 The doubt as to its legality also appears to subsist at present. Reference can be made in this respect to the contingency plans drawn up by a number of states for Non-Combatant Evacuation Operations to be undertaken in third states during times of widespread internal unrest. Such plans make this type of operation conditional on the territorial state’s consent. Where such consent is not forthcoming or impossible to obtain, the operations are based on the right of self-defence. Even though many such operations were unopposed or tolerated in recent state practice, their legal status remains ultimately contested.40 In particular, military operations for the rescue of hostages without the territorial state’s consent are deplored and the position adopted in state practice is to secure their liberation by resort to peaceful (that is, non-forcible) means.
Second, the heavy fighting that broke out at Larnaca airport between the Egyptian commandos and the Cypriot forces has shown the risk of escalation and thus the threat they may pose to international peace. Even though the particular incident did not evolve into a major armed conflict between Egypt and Cyprus and resulted only in a temporary severance of diplomatic relations, it is important to be aware that a military operation of this kind may lead to the disruption of friendly relations between states. More generally, in the present author’s view, the insistence on a right to use force for the protection of nationals as a form of the right of self-defence is contrary to the rationale of the legal regime introduced by the UN Charter and consistently upheld by the International Court, namely, that the unilateral resort to armed force by states is to be substantially restricted.
3 Panagiotis Dimitrakis ‘The 1978 Battle of Larnaca Airport, Cyprus and UK Diplomacy’ (2009) 13(2) Middle East Review of International Affairs, 2, available at <http://www.rubincenter.org/2009/06/dimitrakis-2009-06-07/> accessed 24 November 2016.
5 Dimitrakis (n 3).
6 Keesing’s Record of World Events (n 1).
7 ‘The Larnaca-Sebai Affair’ (1978) 5 Executive Intelligence Review 1, 3 <http://www.larouchepub.com/eiw/public/1978/eirv05n08-19780228/eirv05n08-19780228_026-the_larnaca_sebai_affair.pdf> accessed 24 November 2016.
8 Keesing’s Record of World Events (n 1).
11 Keesing’s Record of World Events (n 1); Arthur Mark Weisburd, Use of Force: The Practice of States Since World War II (The Pennsylvania State University Press 1997) 280.
13 Dimitrakis (n 3) 4.
14 ibid 6.
15 Telegram from the Department of State to the Embassy in Cyprus (2 March 1978) 0136Z, (1977–1980) XXI Foreign Relations of the United States, Cyprus; Turkey; Greece—Office of the Historian <https://history.stats.gov/historicaldocuments/frus1977-80v21/d47> accessed 24 November 2016; Telegram from the Embassy in Cyprus to the Department of State (2 March 1978) 1100Z, (1977–1980) XXI Foreign Relations of the United States, Cyprus; Turkey; Greece—Office of the Historian <https://history.stats.gov/historicaldocuments/frus1977-80v21/d478> accessed 24 November 2016.
16 See Chapter 19 by Claus Kress and Benjamin K Nussberger in this volume.
17 Dimitrakis (n 3) 5.
18 Telegram from the Embassy in Cyprus to the Department of State (2 March 1978) 1100Z, (1977–1980) XXI Foreign Relations of the United States, Cyprus; Turkey; Greece—Office of the Historian <https://history.stats.gov/historicaldocuments/frus1977-80v21/d478> accessed 24 November 2016.
19 Ronzitti (n 10) 85; Rousseau (n 9) 1096; Tom Ruys, ‘Armed Attack’ and Article 51 of the UN Charter (CUP 2010) 229; cf Weisburd (n 11) 280, where the Larnaca incident is recited under the general rubric ‘Limited Uses of Force’.
20 See Ruys (n 19) 213.
22 Japan justified its military action against China in Manchuria (1931) and Shanghai (1932) as an act (a) of self-defence and (b) of protection of nationals; see (1931) League of Nations Official Journal 2267; (1932) League of Nations Official Journal 344–45. The Council of the League in its resolution of 30 September 1931 on Manchuria took note of the Japanese representative’s statement that the withdrawal of the Japanese troops from Manchuria would be in proportion to the safety of the Japanese nationals, (1931) League of Nations Official Journal 2307–08. The Japanese position appears to have been supported by the United Kingdom, see Ian Brownlie, International Law and the Use of Force by States (OUP 1963) 296.
23 Christine Gray, International Law and the Use of Force (3rd edn, OUP 2008) 156, 159; Tarcisio Gazzini, The Changing Rules on the Use of Force in International Law (Juris Manchester 2005) 170–71, footnote 311. However, consent must be express and unequivocal, emanating from the competent authorities of the state.
24 Constantine Antonopoulos, The Unilateral Use of Force by States in International Law (A Sakkoulas Publishers Athens-Komotini 1997) 438–40; Ruys (n 19) 244.
26 The Corfu Channel Case (n 25) 34.
28 UNGA Res 2625 (XXV) (24 October 1970) UN Doc A/RES/2625, states in the 4th paragraph of the principle on the prohibition of the use of force: ‘Every State has the duty to refrain from the threat or use of force to violate the existing international boundaries of any State.’ Definition of Aggression, UNGA Res 3314 (XXIX) (1974) UN Doc A/RES/3314, reads in its preamble (7th paragraph): ‘The territory of a State shall not be violated by being the object, even temporarily, of military occupation or of other measures of force taken by another State in contravention of the Charter.’ Principle III of the 1975 Helsinki Final Act states that ‘The participating States regard as inviolable all one another’s frontiers as well as the frontiers of all States in Europe and therefore they will refrain now and in the future from assaulting these frontiers.’ All three documents were treated by the Court as evidence of customary law. Case concerning Military and Paramilitary Activities (n 27) –, . See Ian Brownlie, ‘International Law and the Use of Force by States Revisited’ (2002) 1 Chinese Journal of International Law 1, 7.
29 See Ruys (n 19), 239 fn 587.
30 Humphrey Waldock, ‘The Regulation of the Use of Force by Individual States in International Law’ (1952 II) 81 Recueil des Cours 455, 467; Bowett (n 21) 40–41.
31 See, in particular, the following cases: (i) the UK intervention in Suez (1956): in a statement to the House of Commons on 31 October 1956 the UK Foreign Secretary said that ‘self-defence undoubtedly includes a situation where the lives of the State’s nationals abroad are in imminent danger’, see HC Deb 31 October 1956, vol 558, cols 1565–66. Ruys (n 19) 217 (see Chapter 4 by Alexandra Hofer in this volume); (ii) the US operation to rescue the crew of the freighter SS Mayaguez in Cambodia (1975): Letter dated 14 May 1975 from the representative of the USA to the President of the Security Council (14 May 1975) UN Doc S/11689, it was stated that ‘the United States government has taken certain appropriate measures under Article 51 of the Charter of the United Nations the purpose of which is to achieve the release of the vessel and its crew’ (see Chapter 18 by Natalino Ronzitti in this volume); (iii) the Israeli operation at Entebbe airport in Uganda (1976): during the debate at the Security Council, Israel justified the operation as an exercise of the right of self-defence, UNSC Verbatim Records (9 July 1976) UN Doc S/PV.1939 , – (see Chapter 19 by Claus Kreß and Benjamin K Nußberger in this volume); (iv) the abortive US military operation to rescue the diplomats held hostage at the US Embassy in Tehran (1980): Letter dated 25 April 1980 from the representative of the USA to the President of the Security Council (25 April 1980) UN Doc S/13908, where it was stated that the military operation in Iran ‘was carried out by the United States in exercise of its inherent right of self-defence, with the aim of extricating American nationals who have been and remain the victims of the Iranian armed attack on our embassy’ (see Chapter 26 by Mathias Forteau and Alison See Ying Xiu in this volume); (v) the US military intervention in Panama (1989): it must be noted that the United States only partly invoked the right of self-defence as justification of its military action. The United States also justified the operation on the basis of consent of the legitimate government of Panama and the Panama Canal Treaty (see Chapter 36 by Nicholas Tsagourias in this volume); (vi) the Russian military intervention in Georgia (2008): Letter dated 2008/08/11 from the Permanent Representative of the Russian Federation to the United Nations addressed to the President of the Security Council (11 August 2008) UN Doc S/2008/545: ‘The scale of the attack against the servicemen of the Russian Federation deployed in the territory of Georgia on legitimate grounds, and against citizens of the Russian Federation … demonstrate that we are dealing with the illegal use of military force against the Russian Federation. In those circumstances, the Russian side had no choice but to use its inherent right to self-defence enshrined in Article 51 of the Charter of the United Nations’ (see Chapter 54 by Christine Gray in this volume).
32 James ES Fawcett, ‘Intervention in International Law: A Study of Some Recent Cases’ (1961 II) 103 Recueil des Cours 347, 404; Rosalyn Higgins, ‘The Legal Limits to the Use of Force by Sovereign States: United Nations Practice’ (1961) 37 British Yearbook of International Law 269, 316; Tom Farer, ‘The Regulation of Foreign Intervention in Civil Armed Conflict’ (1974 II) 142 Recueil des Cours 297, 392–93; Ronzitti (n 10) 11; John Quigley, ‘The Legality of the United States Invasion of Panama’ (1990) 15 Yale Journal of International Law 276, 292–94.
34 See statements by the representatives of Romania and India at the Security Council debate on the Entebbe incident, UNSC Verbatim Records (13 July 1976) UN Doc S/PV.1942  (Romania) and  (India).
35 See Chapter 19 by Claus Kreß and Benjamin K Nußberger in this volume.
36 Dimitrakis (n 3) 3.
40 See Ruys (n 19) 245–48.